Tata Consulting Engineers ... vs Dilip P. Pandit And The Member, ...
2003 Latest Caselaw 1020 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the parties. Rule. By consent, the rule is made returnable forthwith.

2. The petitioners challenge the judgment and order dated 24-3-2003, passed by the Industrial Tribunal whereby he Tribunal has allowed the application for subsistence allowance pending the hearing and final disposal of the approval application by the petitioners and which is pending for disposal before the Industrial Tribunal.

3. Placing reliance upon an unreported decision of the Division Bench of this Court in the matter of Air India Limited v. Mr. Libio Francisco Colaco and Anr. in Appeal No. 351 of 2003, delivered on 30-6-2003, along with other appeals and writ petitions, the learned Advocate appearing for the petitioners has submitted that it has been clearly held by the Division Bench that in cases where domestic inquiry is held to be either defective or there was only a facade of an inquiry or there was no inquiry at all, only on such finding being arrived at, the Industrial Tribunal is entitled to direct the payment of subsistence allowance during the pendency of the application for approval under Section 33(2)(b) of the Industrial Disputes Act, 1947, hereinafter called as "the said Act", otherwise there can be no justification for ordering payment of subsistence allowance to the workman during the pendency of such proceedings for approval. The Tribunal having totally ignored this aspect and the order having been passed, without ascertaining as to whether the inquiry was defective in any manner, the Tribunal could not have directed the payment of the subsistence allowance to the respondent (No. 1). It is further submitted that the reference filed during the pendency of the approval application has already been disposed of. On the other hand, the learned Advocate for the respondent, while submitting that in view of the law being settled by the decision of the Division Bench the matter will have to be remanded to the Industrial Tribunal for necessary order in accordance with the said decision of the Division Bench, argued that the proceedings cannot be disposed of merely because of disposal of the main reference, bearing in mind the decision of the Apex Court in the matter of Tata Iron & Steel Co. Ltd. v. S.N. Modak, .

4. It is not in dispute that the petitioners had filed an application for approval of the termination of services of the respondent during the pendency of the Reference (IT) No. 49 of 1986, It is also not in dispute that the said Reference (IT) No. 49 of 1986 has already been finally disposed of. However, as rightly submitted by the learned Advocate for the respondent and fairly conceded by the learned Advocate for the petitioners, the proceedings initiated by the petitioners for approval, of the decision of termination of the services of the respondent cannot be disposed of merely because the reference has been disposed and the same will have to be decided in accordance with the provisions of law, after hearing the parties, as has been held by the Apex Court in Tata Iron & Steel Co. Ltd. v. S.N. Modak (supra). It was held therein that:-

"13. Now, take the present case and see how the acceptance of the appellant's argument would work. As we have already pointed out, in the present case the Tribunal has considered the merits of the appellant's prayer that it should accord approval to the proposed dismissal of the respondent and it has come to the conclusion that having regard to the relevant circumstances, the approval should not be accorded. If the appellant's argument is accepted and it is held that as soon as the main industrial disputes were finally determined, the application made by the appellant under Section 33(2) automatically came to an end, the respondent would not be able to get any relief against the appellant for the wrongful termination of his services between the date of the impugned order and the final disposal of the main industrial disputes; and this would mean that in case like the present, Section 33A would be rendered nugatory, because the employer having duly applied under Section 33(2)(b), the employee cannot complain that there has been a contravention of Section 33 by the employer, even though on the merits the dismissal of the employee may not be justified. That, in our opinion, could not have been the intention of the Legislature. This aspect of the matter support the conclusion that a proceeding validly commenced under Section 33(2)(b) would not automatically come to an end merely because the main industrial dispute has in the meanwhile been finally determined."

5. The Division Bench, in the unreported decision relied upon by the petitioners, while dealing with the issue relating to claim of subsistence allowance during the pendency of the proceedings for approval under Section 33(22)(b) of the said Act, has clearly held thus:-

"Broadly the cases in the Tribunal could be categorised in three categories. As far as the first category of cases is concerned, they are cases in which a workman is dismissed for misconduct after due inquiry and on scrutiny by the Labour Court or the Tribunal, as the case may be, also the inquiry is found to be valid. In such cases, there would be no justification for providing payment of subsistence allowance to the workman concerned. The mandate of the statute is to complete the proceedings within a period of three months, If in every case application for interim order is filed and on that application considerable amount of time is spent both the High Court, the legislative mandate or early hearing of the application would be completely defeated. In such cases, the Tribunal would be justified in taking up the main application for approval for hearing. But there are cases in which either the domestic inquiry held by the management is set aside on the ground that it was defective or there was only a facade of an inquiry or there was no inquiry at all. But for the procedure evolved by the decisions of the Court in the interest of speedy finalisation of the cases in which the workmen were dismissed from service, by requiring the Labour Court or the Tribunal itself to hold a de novo inquiry, the position would have been, the moment it is established that the domestic inquiry is invalid or there was no domestic inquiry at all, the penalty imposed would have had to be set aside, but without prejudice to the right of the management to hold a de novo inquiry. In that situation, during the period of de novo inquiry, the management may be asked to give subsistence allowance to the workmen concerned in accordance with the Standing Orders or the rules regulating the condition of service. It is because of the procedure, namely, the holding of domestic inquiry by the Labour Court/Tribunal itself, evolved by the decision of the Court, it has resulted in this situation viz., even as the order of dismissal remains undisturbed, a de novo inquiry is held to find out as to whether dismissal was justified or not, We are of the opinion that if de novo inquiry is ordered to justify the order of dismissal a and the matter has been unduly protracted for no fault of the workmen, the Tribunal would be justified in awarding subsistence allowance to the workman in appropriate cases. We, however, hasten to add that the grant of interim relief is not a matter of course and the exercise of such power should be used sparingly and only in deserving cases."

6. The law is thus well-settled by the above referred decision of the Division Bench regarding entitlement of the workman to claim subsistence allowance during the pendency of the proceedings for approval of termination of the services of the workman and accordingly the Tribunal before granting any such application for direction for payment of subsistence allowance in such proceedings will have to ascertain whether the inquiry held by the employer was fair or not and whether there was any defect in such inquiry or whether there was a mere farce of an inquiry or whether there was no inquiry at all in the eyes of law held by the employer and only thereafter, depending upon the appropriate findings of the Tribunal in that regard, the Tribunal will have to decide the right of the workman to claim subsistence allowance, bearing in mind the observations of the Division Bench quoted hereinabove. The Industrial Tribunal, in the instant case, having not carried out any such exercise prior to issuing the direction to pay the subsistence allowance to the respondent, the impugned judgment and order cannot be sustained and the same is liable to be set aside and the matter remanded to decide the said issue afresh, bearing in mind the decision of the Division Bench, referred to above.

7. Further, though the proceedings in the reference case have been concluded, the present proceedings which were validly instituted cannot come to an end, except by proper adjudication of the main issue raised in the matter, as has been held by the Apex Court in S.N. Modak's case.

8. In the result, therefore, the petition succeeds. The impugned judgment and order is hereby set aside and the matter is remanded to the Industrial Tribunal to decide the application relating to the claim of subsistence allowance and the application for approval in accordance with the provisions of law, bearing in mind the decision of the Division Bench referred to above, The rule is made absolute accordingly with no order as to costs.

9. All concerned to act on the ordinary copy of this order duly authenticated by the Associate/P.S. of this Court.